Allowed

Naresh Rampadarath Choudhary and Ors. v. Bhaguram Sudkaji Tambe and Ors. and Naresh Rampadarath Choudhary and Ors.

Bombay HC15 Feb 2005CHS/122/2005

Case brief

AI extract

What is this about?

The court allowed a chamber summons to transpose plaintiffs no.1 to 3 as defendants no.4 to 6 in an agreement for sale suit. Held that since the plaintiffs settled with some defendants, plaintiff no.4 needed to claim partition of his undivided share to avoid multiplicity of proceedings, citing Supreme Court precedents.

What did the court decide?

Amendment to transpose plaintiffs no.1 to 3 as defendants to be carried out within 2 weeks.

Naresh Rampadarath Choudhary and Ors. Vs… — Contract and Commercial Disputes | Bombay HC (2005)

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:1:

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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CHAMBER SUMMONS NO. 122 OF 2005

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IN

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SUIT NO.29 OF 2004

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 Naresh Rampadarath Choudhary
 and Ors. ..... Plaintiffs
 v/s.
 Bhaguram Sudkaji Tambe and Ors ... Defendants
 AND
 Naresh Rampadarth Choudhary and
 Ors. .... Respondents

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 S.D.Mogare i/b. R.C. Kaushik for the plaintiffs.
 Manojkumar Upadhyay for defendant nos. 1 and 2.

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 CORAM: S.U. KAMDAR, J.

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DATE : 15TH FEBRUARY, 2005.

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P.C. :

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 1. The present chamber summons is taken out for
 transposition of plaintiff nos. 1 to 3 as defendant
 no.4 to 6.

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 2. The original suit has been filed by the
 plaintiffs no.1 to 4 for specific performance of
 agreement of sale dated 25.10.1990 and for
 consequential relief. It seems that the plaintiff

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:2:

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 nos. 1 to 3 have settled the matter with the

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 defendant no.1 and 2 who are the owners of the land.
 The plaintiff nos.1 to 3 have addressed a letter
 dated 10.1.2005 inter-alia conveying that in view of
 the fact they have settled the matter with defendant
 nos.1 to 3 they are not desirous of prosecuting the
 said suit any further and they have decided to file
 consent terms in the present suit. In view of the
 above the present chamber summons has been taken out
 to transpose the plaintiff nos.1 and 3 as defendant
 since they are not inclined any further to prosecute
 the present suit.

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 3. An affidavit of service has been filed dated

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 15.2.2005 serving the present chamber summons on the
 plaintiff nos.1 and 3 who are proposed to be
 transposed as defendant no.4 to 6. None appears on
 their behalf though they are served.

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 4. However the learned counsel for the defendant
 no.1 has vehemently oppose the present chamber
 summons. According to him the amendment is
 inconsistent with the plea which is already existing

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:3:

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 in the present suit. It is his case that the plea

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 for partition is not there in the original suit and
 is now sought to be introduced by virtue of the
 present amendment which would change the nature of
 the suit and thus the present chamber summons should
 be dismissed. I see no merits in the contention
 advanced by the learned counsel for defendant no.1.
 The original suit is for specific performance of an
 agreement which is in favour of the plaintiff no.1
 to 4 jointly. The plaintiffs no.1 to 3 have now
 settled their claims. Thus plaintiff no.4 is
 required to seek specific performance of his
 agreement for sale in so far as his share in the
 land is concerned. His 1/4th share in the land
 being undivided he is also required to claim
 partition of the said property. Thus partition of
 the suit property being consequent of settlement of
 claim by the plaintiffs no.1 to 3 during the
 pendency of the suit. It is necessary to include
 necessary averments and prayers for the same.

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 5. In the event the plaintiff no.4 succeeds in
 the suit for specific performance then in that event

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:4:

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 he will be having 1/4 undivided share in the said
 property alongwith plaintiff nos.1 to 3 who are now
 sought to be transposed as defendant no,.4 to 6.
 Thus it is obvious that as a necessary consequence
 the plaintiff will be required to claim partition of
 his 1/4 undivided share in the said property as and
 when the same is conveyed to him pursuant to the
 decree for specific performance passed. In view of
 the judgment of the Apex Court in the case of Raghu

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Thuilak D. Joh vs. S. Rayappan and Ors. reported
in (2001) 2 SCC 472 and followed in judgment of
Pankaja and Anr. Vs. Yellappa (Dead) by LRs and
others reported in (2004) 6 SCC 415 even if an
 amendment is in consistent the same can be granted
 to avoid multiferiousness of the proceedings.

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 6. In view thereof I allow the present chamber

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 summons in terms of prayer clause (a) and (b).
 Amendment to be carried out within 2 weeks from
 today. No order as to costs.

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 sd/-

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 *********

Naresh Rampadarath Choudhary and Ors. v. Bhaguram Sudkaji Tambe and Ors. and Naresh Rampadarath Choudhary and Ors.

Case brief

What is this about?

What did the court decide?

Naresh Rampadarath Choudhary and Ors. v. Bhaguram Sudkaji Tambe and Ors. and Naresh Rampadarath Choudhary and Ors.

Case brief

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What did the court decide?

What the court decided

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